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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT BILL 2006
OUTLINE
The Classification (Publications, Films and Computer Games) Amendment Bill 2006
amends the Classification (Publications, Films and Computer Games) Act 1995, the
Broadcasting Services Act 1992 and the Freedom of Information Act 1982.
Schedule 1 makes amendments to facilitate the integration of the Office of Film and
Literature Classification into the Attorney-General's Department. It removes the
Director's financial powers and responsibilities for the administration of the Office of
Film and Literature Classification and replaces references to that agency in legislation
with more appropriate references. It provides for Australian Public Service staff from
the Attorney-General's Department to support the Classification Board (Board) and
Classification Review Board (Review Board) in executing their statutory functions.
Schedule 2 makes amendments to reinforce the independence of the Board and
Review Board. It provides separate statutory powers to the Convenor of the Review
Board to manage the administrative functions of the Review Board independently of
the Board - confining the existing powers of the Director to matters associated with
the Board and giving new powers to the Convenor for matters associated with the
Review Board. These include obtaining copies of material to be reviewed,
considering applications for waiver of fees, and issuing classification certificates.
Consistent with ministerial responsibility, the Bill also transfers to the Minister
administering the Act (currently the Attorney-General) the power to determine fee
waiver principles in consultation with State and Territory Censorship Ministers.
Schedule 3 makes amendments to improve the operation of the National
Classification Scheme and to respond to the changing technological environment for
entertainment media. It provides that additions to already classified films of
descriptions or translations such as sub-titling or captioning, or of navigation
functions such as interactive menus, are not considered modifications necessitating
reclassification. The Bill also provides for an additional content assessor scheme to
recommend to the Board the classification and consumer advice for `additional
content' released with an already classified or exempt film. Quality assurance
processes are included in the scheme to ensure the on-going integrity of the
classification process.
Schedule 4 makes a number of miscellaneous minor amendments such as to repeal
expired or redundant provisions. The Bill also transfers from the Director of the
Board to the Minister the power to determine markings to be displayed about
classified material.
FINANCIAL IMPACT STATEMENT
The Bill will not result in any change to the net asset position for the Commonwealth.
As amendments relate generally to changes to administrative processes, it is not
expected that there will be any significant financial impact. The additional content
assessment scheme and the amendments excluding descriptions or translations and
navigation functions from being modification requiring reclassification streamline the
classification process and may result in cost reductions to industry as less material
will require classification by the Board.
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NOTES ON CLAUSES
Clause 1: Short title
1. This clause sets out the title by which the Bill, when enacted, is to be cited -
Classification (Publications, Films and Computer Games) Amendment Act 2006.
Clause 2: Commencement
2. This clause provides separate commencement dates for various items of the Bill.
The Short Title, Commencement and Schedule enactment provisions in sections 1 - 3
will commence on the day on which the Bill receives Royal Assent.
3. Amendments in Schedule 1 - Integration amendments
a. All items in Parts 1 and 2 will commence on the earlier of Proclamation or
6 months after Royal Assent.
This flexibility is necessary as a variety of administrative and financial
arrangements must be co-ordinated to effect the integration of the Office of
Film and Literature Classification into the Attorney-General's Department.
1. Amendments in Schedule 2 - Amendments relating to the administrative
arrangements of the Classification Board and the Classification Review Board have
varying commencement dates.
a. Part 1, Items 2 and 8 validating Convenor actions will commence on Royal
Assent.
b. Part 1, Item 1 about the Convenor exercising State and Territory powers, items
13 and 26 about proceedings arising from the Convenor's actions, items 16
and 25 about reviews by the Administrative Appeals Tribunal, item 19 about
the timeframe for Review Board decisions, item 20 about service of notice,
and items 21 to 24 about waiver of fees will commence on the earlier of
Proclamation or 6 months after Royal Assent.
This flexibility is necessary as a variety of administrative and financial
arrangements, including remaking delegations and instruments, must be
co-ordinated to effect these amendments which are ancillary to the integration
of the Office of Film and Literature Classification into the Attorney-General's
Department.
c. Part 1, Items 10-12 and 15 about delegations of the Director's and Convenor's
powers will commence on the same day as item 13 of Schedule 1 (which
provides for Australian Public Service staff to assist the Boards) as they are
intrinsically linked.
d. Part 1, Items 3-6 and 17-18 about providing the Convenor with powers
concerning classification certificates, notices and evidentiary certificates; and
items 7, 9 and 14 about the Convenor's power to request copies of material
will commence on the earlier of Proclamation or 12 months after Royal
Assent.
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The option for commencement up to 12 months after Royal Assent is
necessary as these provisions either require amendments to complementary
State and Territory legislation to be effective or are intrinsically linked to
provisions which require such amendment.
e. Part 2 - Application, transitional and saving provisions - will commence on
Royal Assent.
1. Amendments in Schedule 3 - Amendments to streamline the classification process
have varying commencement dates.
a. Part 1, Items 1-6 and 9-12 about the additional content assessment scheme will
commence on the earlier of Proclamation or 6 months after Royal Assent.
This flexibility is necessary as a variety of administrative arrangements,
including establishing training and application processes, must be co-ordinated
for this scheme to operate effectively.
b. Part 1, Items 7-8 about the addition of descriptions or translations and
navigation functions to classified films will commence on the earlier of
Proclamation or 12 months after Royal Assent.
The option for commencement up to 12 months after Royal Assent is
necessary as these provisions require amendments to complementary State and
Territory legislation to be effective.
c. Part 2 - Application, transitional and saving provisions will commence on
Royal Assent.
1. Amendments in Schedule 4 - Other amendments have varying commencement
dates.
a. All items in Part 1 contain miscellaneous and minor amendments. They
commence on Royal Assent.
b. All items in Part 2 are about determined markings. They will commence on
the earlier of Proclamation or 12 months after Royal Assent.
The option for commencement up to 12 months after Royal Assent is
necessary as these provisions require amendments to complementary State and
Territory legislation to be effective.
Clause 3: Schedule(s)
1. This clause provides that the amendments made by the Bill, when enacted, are as
set out in the Schedules.
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SCHEDULE 1 - Integration amendments
Part 1 - Amendments
2. These amendments integrate the Office of Film and Literature Classification's
functions into the Attorney-General's Department.
Broadcasting Services Act 1992
1. Paragraphs 100 (2)(c) and 119(2)(c)
3. These consequential amendments change references in the Broadcasting Services
Act 1999 from compliance with the film classification system `administered by the
Office of Film and Literature Classification' to that `provided for by the
Classification (Publications, Films and Computer Games) Act 1995'. There are no
operational changes arising from this amendment.
4. Section 100 includes compliance with the film classification system as something
to which the Australian Communications and Media Authority may subject a
subscription television broadcasting license.
5. Section 119 includes compliance with the film classification system as a condition
which may be included by Australian Communications and Media Authority in
subscription broadcasting and narrowcasting class licences as a condition it considers
should be imposed on the provision of services under that licence.
2. Paragraphs 123(3A)(a) and 123(3C)(a)
6. These consequential amendments change references in the Broadcasting Services
Act 1999 from applying the film classification system `administered by the Office of
Film and Literature Classification' to that `provided for by the Classification
(Publications, Films and Computer Games) Act 1995'. There are no operational
changes arising from this amendment.
7. Paragraphs 123(3A)(a) and 123(3C)(a) require that industry groups representing
television broadcasting licensees and narrowcasters, in developing codes of practice
concerning classification of programs and community standards, must apply the film
classification system for the purpose of classifying films.
3. Paragraphs 89(1)(g) to (i) of Schedule 5
8. This consequential amendment to the Broadcasting Services Act 1999 reflects the
changed staffing arrangements for the Board and Review Board. The amendment
changes the listing of protected persons from officers made available under
subsection 54(3) of the Classification Act which is being repealed to staff mentioned
in new section 88A (below) and consultants engaged to assist the Boards.
9. Section 89 provides that criminal proceedings do not lie against protected persons
in connection with them exercising powers or functions conferred on the ACMA, the
Board or the Review Board by the Online Content Scheme in Schedule 5 of the
Broadcasting Services Act 1999.
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Classification (Publications, Film and Computer Games) Act 1995
4. Subsection 17(5)
10. Subsection 17(5) provides that the Director of the Board may authorise a person
to assess and make recommendations on classification and appropriate consumer
advice of computer games if they have completed the appropriate training. This
amendment replaces reference to training by the Office of Film and Literature
Classification with training approved by the Director.
5 and 6. Section 52
11. Subsections 52(2) and (3) concern the Director's agency administration
responsibilities and powers. This amendment repeals them and removes the
unnecessary reference to subsection 52(1) as a consequence of integrating the Office
of Film and Literature Classification into the Attorney-General's Department. The
financial and administrative affairs of the Board and the Review Board will be
managed by officers of the Department, including entering into contracts and
acquiring or disposing of property.
7 and 8. Division 3 of Part 6 and subsection 59(1)
12. Sections 54 and 55 concern the structure of the Office of Film and Literature
Classification as a Statutory Agency for the purposes of the Public Service Act 1999,
staff assisting the Board, and the Director's power to engage consultants. This
amendment repeals these provisions as a consequence of integrating the Office of
Film and Literature Classification into the Attorney-General's Department. A new
section 88A (below) will provide for Australian Public Service staff provided by the
Attorney-General's Department to assist the Board and the Review Board. The
Attorney-General's Department will engage consultants as appropriate in the normal
course of business.
13. Because section 54(2) which created the separate Statutory Agency is repealed,
the amendment to subsection 59(1) removes that subsection's reference to subsection
54(2). See the further amendment to section 59 in Schedule 2 Part 1 below.
9. Section 67
14. Section 67 requires the Director to provide the Minister with a report of the
management of the administrative affairs of the Board and audited financial
statements for the Board and Review Board. The Director will no longer be
responsible for the financial management of the resources of the Board and Review
Board which are currently appropriated to the Office of Film and Literature
Classification. The amendment repeals the financial reporting aspects of the section.
The new provision will require annual reporting on the management of the
administrative affairs of the Board in the same terms as for the Convenor of the
Review Board under section 85.
10 - 12. Sections 68, 69 and 70
15. Sections 68, 69 and 70 concern obligations to keep proper financial accounts and
records, provide access to them, and have them audited by the Auditor-General. The
amendment repeals these sections as the Attorney-General's Department will assume
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responsibility for the financial administration of the Board and Review Board
activities as part of its regular financial management and reporting obligations.
13. After section 88
S 88A Staff assisting the Board and the Review Board
16. A new section 88A is inserted to provide that staff assisting the Board and the
Review Board are to be public servants made available by the Secretary of the
Attorney-General's Department.
Freedom of Information Act 1982
14 and 15. Division 1 of Part 11 of Schedule 2 (items relating to the Office of
Film and Literature Classification)
17. Part 11 of Schedule 2 lists agencies which are exempted from particular
provisions of the Freedom of Information Act 1982 in relation to specific documents.
Currently, the Board, the Review Board and the Office of Film and Literature
Classification are listed in relation to exempt Internet-content documents. After the
commencement of the relevant provisions of this Bill, the Office of Film and
Literature Classification will no longer exist as a separate body and its relevant
functions will be performed by officers of the Attorney-General's Department.
18. These amendments replace the listing for the Office of Film and Literature
Classification with the Attorney-General's Department. The listings for the two
Boards remain, recognising their ongoing status as independent bodies.
Part 2 - Application, transitional and saving provisions
16 and 17. Transitional provisions - conditions of licences and codes of practice
19. These provisions ensure that existing conditions to which a subscription
television broadcasting license is subject, and broadcasting and narrowcasting codes
of practice made under the Broadcasting Services Act 1992 that refer to the scheme
administered by the Office of Film and Literature Classification continue to have
effect.
18. Transitional provision - training
20. This provision provides that a person previously trained by the Office of Film and
Literature Classification and authorised by the Director prior to the commencement of
the relevant item continues to be considered to have been appropriately trained to
make assessments. Therefore, their authorisation by the Director continues to have
effect.
19. Application provision - annual report
21. This provision recognises that the integration of the Office of Film and Literature
Classification may occur during a financial year. It provides a revised section 67 to
maintain the Director's financial reporting obligations for the part of a financial year
occurring prior to the integration of the Office of Film and Literature Classification.
It requires the Director to provide financial statements for the Board and Review
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Board for that part of the financial year, and a report of the management of the
administrative affairs of the Board for the whole year.
20. Application provision - audit
22. This provision provides a revised section 69 if the Auditor-General had not yet
inspected and audited for the financial year in which integration occurred. The
provision requires the Auditor-General to inspect and audit, within three months of
the end of the financial year in which integration occurred, the accounts and records
of financial transactions and records about assets held by the Director on behalf of the
Commonwealth for that part of the financial year occurring before integration.
23. This provision ensures ongoing financial accountability of the Director in
managing the Office of Film and Literature Classification for that part of a financial
year occurring prior to integration.
21. Application provision - access to accounts and records
24. This provision provides that section 70, which authorises the Auditor-General to
access accounts and records of the Board and Review Board, applies in a revised way
to provide access to accounts and records of money received and paid and assets
acquired, held or disposed of on behalf of the Commonwealth until integration.
25. Again, this ensures ongoing financial accountability of the Office of Film and
Literature Classification for that part of a financial year occurring prior to integration.
22. Application provision - exempt documents
26. This provision protects exempt documents held by the Attorney-General's
Department from relevant Freedom of Information Act 1982 provisions regardless of
when they were created. That is, if they were protected as documents under the
Office of Film and Literature Classification's previous listing, they maintain that
protection once listed under the Attorney-General's Department.
SCHEDULE 2 - Amendments relating to the
administrative arrangements of the Classification
Board and the Classification Review Board
27. These measures are ancillary to the integration decision. The Act currently
confers administrative and financial powers of both the Board and the Review Board
on the Director of the Board who is concurrently the Director of the Office of Film
and Literature Classification. These amendments will delineate powers and
responsibilities to implement the full independence of the Board and the Review
Board and remove the anomaly whereby the Review Board is reliant on the Director
of the Board for some of its administrative functions.
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Part 1 - Amendments
Classification (Publications, Film and Computer Games) Act 1995
1. Section 4
28. This amendment enables the Convenor to exercise powers and perform functions
relating to classification that are conferred under an arrangement between the
Commonwealth and the States and Territories. This is consistent with providing the
Convenor of the Review Board the statutory powers to manage the administrative
functions of the Review Board independently of the Board.
2. Subsection 22C(2)
29. This amendment extends to the Convenor the protection given by section 22C to
decisions made or actions taken by the Board, Director and Review Board on the
basis of an otherwise invalid classification decision by the Board.
30. The Classification Act was amended in 2004 to validate classification decisions
made by the Board or Review Board further to deficient or defective applications for
classification by law enforcement authorities. It also validated decisions made or any
later action taken by the Board, the Review Board or the Director in respect of the
decisions that were validated by the amendments.
31. However, it appears to have been an oversight that the Convenor was not
included when section 22C was first inserted. Such a provision necessarily operates
retrospectively. This is appropriate and justified. No person will be adversely
affected. The amendment merely remedies technical errors in the application process.
Such technical errors cast no doubt on the correctness of the classification decision.
3. After subsection 25(1)
32. This amendment requires the Convenor to issue a classification certificate for
material classified by the Review Board. This is consistent with providing the
Convenor of the Review Board the statutory powers to manage the administrative
functions of the Review Board independently of the Board.
33. It also clarifies that, when the Board has classified material and the Review Board
has later classified the same material on review, the classification certificate issued by
the Review Board is to prevail. The Board's certificate is taken to be revoked on the
same day the Review Board's decision takes effect. This is on the day on which
notice of the Review Board's decision is given under section 26. This may not be the
same day as when the Review Board issues its classification certificate.
4. Subsection 26(3)
34. This amendment requires the Convenor to give a notice of a Review Board
decision to a wider range of people than is currently required. This is consistent with
providing the Convenor of the Review Board the statutory powers to manage the
administrative functions of the Review Board independently of the Board.
35. The amendment requires the Convenor to give notice of decisions of the Review
Board to the applicant, and to persons who in the Convenor's opinion have an interest
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in the matter, whether as publisher or otherwise. The range of people who may have a
relevant interest in a Review Board decision include the original applicant if they are
not the applicant for review; a publisher or distributor; the Minister; or persons who
made submissions in the review. The provision is limited by the requirement that the
Convenor hold the opinion that a person has an interest.
36. This power differs marginally from that of the Director who is required to give
notice to the applicant, or, if there is no applicant or the applicant is a different person
from the person on whose application the original decision was made (for example, in
the case of a reclassification after 2 years), to persons who in the Director's opinion
have an interest in the matter, whether as publisher or otherwise.
37. This difference reflects the fact that classification by the Review Board will
always be on application but the applicant may differ from the original applicant for
classification by the Board. Therefore, both the applicant and other parties may have
an interest. In addition, the Board may classify without an applicant - for example, a
reclassification after 2 years under section 39 - and an interested person may need to
be identified by the Director.
38. Various headings are also inserted to the subsections within section 26 to assist
the reader.
5 and 6. Subsection 27(1) and at the end of section 27
39. These amendments are consequential to the separation of administrative functions
and powers of the Review Board and Convenor from those of the Board and Director.
These amendments operate together so that there are separate provisions in similar
terms in section 27 for applications to each of the Director and the Convenor for
copies of classification certificates or notices of decisions made by the respective
Boards.
40. Headings are also inserted to the subsections within section 27 to assist the
reader.
7. Subsection 44A(1)
41. This amendment replaces the Director with the Convenor as the person who may
require the relevant person to provide a copy of a particular publication, film or
computer game for the purpose of the Review Board conducting a review of that
material. This is consistent with providing the Convenor of the Review Board the
statutory powers to manage the administrative functions of the Review Board
independently of the Board.
8. Subsection 44B(2)
42. As for section 22C(2) above, this amendment extends the protection given by
section 44B to decisions made or actions taken by the Board, Director and Review
Board on the basis of an otherwise invalid classification decision to decision made or
action taken by the Convenor.
43. The Classification Act was amended in 2004 to validate classification decisions
made by the Board or Review Board further to deficient or defective applications for
classification by law enforcement authorities. It also validated decisions made or any
10
later action taken by the Board, the Review Board or the Director in respect of the
decisions that were validated by the amendments.
44. However, it appears to have been an oversight that the Convenor was not
included when section 44B was first inserted. Such a provision necessarily operates
retrospectively. This is appropriate and justified. No person will be adversely
affected. The amendment merely remedies technical errors in the application process.
Such technical errors cast no doubt on the correctness of the classification decision.
9 Paragraph 53(a)
45. This amendment removes the listing of section 44A from section 53(a) which
provides that the Director may exercise powers conferred by State and Territory
legislation that correspond to the listed sections of the Commonwealth Act. This is
because the amendment (above) to section 44A gives the Convenor the power to
request copies for review, and new section 77A (below) enables the Convenor to
exercise powers conferred by a State or Territory law corresponding to section 44A.
Once the Convenor not the Director has the power under section 44A to request
copies for review and the States and Territories make consequential amendments to
their legislation to refer to the Convenor, the listing of section 44A in the Director's
powers in section 53(a) is inappropriate.
10, 11 and 12. Section 59
46. Amendments to section 59 provide greater flexibility for the Director to delegate
to members of the Board and staff various powers relating to the Director's and the
Board's activities. This will provide improved opportunity to effectively manage the
administration of the Board's resources and workloads.
47. Amendments to subsection 59(1) clarify that the Director may delegate to another
Board member the Director's powers under the regulations as well as the Act.
48. Amendments to subsection 59(2) provide that the Director may also delegate to
staff any of the Director's power under the regulations. This includes, for example,
the power to determine partial refunds of fees. This is an administrative action
requiring the Director to determine the amount of refund due, having regard to criteria
that are specified in the regulations. It is unnecessary that this power be exercised by
the Director in person.
49. The amendment also updates reference to the staff to whom powers may be
delegated under subsection 59(2) as those mentioned in the new section 88A. That
section provides that staff assisting the Board and the Review Board are to be public
servants made available by the Secretary of the Attorney-General's Department.
50. The amendments to subsection 59(3) is consequential on the redrafting of
subsection 59(2), and preserves the existing effect of subsection 59(3).
51. See the further amendment to section 59 in Schedule 1 Part 1 above.
13. Section 71
52. This amendment and new section 92A below are consequential to the separation
of administrative functions and powers of the Review Board and Convenor from
11
those of the Board and Director. These amendments operate together to provide that
judicial or other proceedings relating to anything done by the Convenor as well as by
the Director may be brought by or against the Commonwealth.
53. Section 71 is repealed. It provides that any judicial or other proceedings relating
to the administration of the Board or the Review Board, including anything done by
the Director, may be instituted by or against the Commonwealth. This effectively
removes it from Part 6 - The Classification Board; Division 5 - Administrative
Provisions. Instead, new section 92A in Part 8 - Miscellaneous is in almost identical
terms except that it adds `anything done by the Convenor'.
14. At end of Division 2 of Part 7
S 77A Powers of Convenor under State / Territory laws
54. New section 77A provides that the Convenor may exercise powers conferred on
him or her by a law of a State or the Northern Territory that corresponds to
section 44A. This is consistent with providing the Convenor of the Review Board the
statutory powers to manage the administrative functions of the Review Board
independently of the Board.
55. Section 44A, once amended, will provide that the Convenor may require the
relevant person to provide a copy of a publication, film or computer game for the
purpose of the Review Board conducting a review of that material. Section 44A
refers to material in the Australian Capital Territory. State and Northern Territory
legislation confers the equivalent power for material in each jurisdiction. The States
and the Northern Territory will be making relevant changes to their complementary
legislation to change `Director' to `Convenor' to come into effect in conjunction with
the commencement of this provision.
15. Before section 80
S 79A Delegations
56. New section 79A will replicate amended section 59 to provide flexibility for the
Convenor to delegate to members of the Review Board and staff various powers
relating to the Convenor's and the Review Board's activities. This will provide
opportunity to effectively manage the administration of the Review Board's resources
and workloads.
57. Under subsection 79A(1), the Convenor may delegate to another Review Board
member the Convenor's powers under the Act and the regulations.
58. Under subsection 79A(2), the Convenor may also delegate to staff any of the
Convenor's power under the regulations. Although the Convenor currently has no
power under the regulations, it is intended that the regulations will be amended to
provide that the Convenor has the power to provide partial refunds of fees relevant to
applications for review. This would be an administrative action requiring the
Convenor or delegate to determine the amount of refund due, having regard to criteria
that would specified in the regulations, as is the case for the Director now. It is
unnecessary that this power be exercised by the Convenor in person.
59. Under subsections 79A(2) and (3), the Convenor may delegate to staff the
Review Board's powers under the Act. Commensurate with delegation of the Board's
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powers under the Act, this power may only be exercised in relation to classification of
publications, films or computer games or approval of advertisements for such
material, and only if the Review Board has determined by resolution that the
delegation is desirable for the efficient running of the Review Board.
16. Section 86
60. Section 86 is repealed. It provides for application to the Administrative Appeals
Tribunal for review of a decision of the Director to waive all or part of the fees
payable under section 91. This effectively removes it from the beginning of Part 8 -
Miscellaneous. Instead, a new subsection 91(5) is inserted at the end of section 91. It
is in almost identical terms except that it includes a decision of the Convenor.
17 and 18. At the end of subsection 87(1) and at the end of section 87
61. These amendments are consequential to the separation of administrative functions
and powers of the Review Board and Convenor from those of the Board and Director.
These amendments operate together so that section 87 includes separate provisions for
applications to the Director for certificates about actions taken or not taken under the
Act by the Director or Board, and to the Convenor for certificates about actions taken
or not taken under the Act by the Convenor or Review Board.
62. Headings are also inserted to the subsections within section 87 to assist the
reader.
19. After section 87A
S 87B Review Board to make decisions within a specified time
63. New section 87B provides the timeframe within which the Review Board must
make a decision on an application for a review of a decision. It replicates the existing
timeframe for classification decisions by the Board except to the extent that the
Review Board must make a decision within 20 business days or `such other period' as
is prescribed by the regulations rather than `such shorter period'. There are currently
no regulations prescribing another period. However, it is appropriate to provide
flexibility to prescribe a longer time period if necessary. Merits review of decisions
often involves extra work over and above the Board's classification process, such as
seeking written submissions and conducting hearings.
20. Paragraphs 89(b) and (c)
64. This amendment is consequential to the separation of administrative functions
and powers of the Review Board and Convenor from those of the Board and Director.
It simply adds `or Convenor' to provide that a notice may be served under the
Classification Act by sending it by post to the residential or business address last
known to either the Convenor or the Director, or by leaving it with a person
apparently over 16 and living or employed at the residential or business address last
known to either the Convenor or the Director.
21, 22, 23 and 24. Subsections 91(1), 91(1A) and 91(2)
65. These amendments are consequential to the separation of administrative functions
and powers of the Review Board and Convenor from those of the Board and Director.
These amendments operate together so that section 91 includes separate provisions in
similar terms for the Director and the Convenor to waive fees payable under the Act
13
in respect of applications to, respectively, the Board or Director, or the Review Board
or the Convenor (subsections 91(1) and 91(1A)).
66. New section 91(1B) replaces previous section 91(1A) and provides that the
Director or Convenor may only waive payment in accordance with written principles
determined by the Minister in consultation with the participating Ministers. Currently
the principles to be applied when waiving fees are determined by the Director and
approved by the Minister in consultation with State and Territory Ministers.
Consistent with ministerial responsibility, the amendment transfers the power to
determine fee waiver principles from the Director of the Board to the Minister, in
consultation with State and Territory Censorship Ministers.
67. Subsection 91(2) is amended to include an obligation on the Director or the
Convenor, as the case may be, to notify the applicant of a decision.
68. Headings are also inserted to the subsections within section 91 to assist the
reader.
25. At the end of section 91
69. New subsection 91(5) at the end of section 91 provides for application to the
Administrative Appeals Tribunal for review of a decision of the Director or the
Convenor to waive all or part of the fees payable under section 91. This amendment
is consequential to the separation of administrative functions and powers of the
Review Board and Convenor from those of the Board and Director. It is in almost
identical terms to the repealed section 86 except that it includes a decision of the
Convenor.
26. After section 92
S 92A Proceedings arising out of administration of Board or Review Board
70. New section 92A provides that any judicial or other proceedings relating to the
administration of the Board or the Review Board, including anything done by the
Director or Convenor, may be instituted by or against the Commonwealth. It is in
almost identical terms to the repealed section 71 except that it adds `or the Convenor'.
Part 2 - Application, transitional and saving provisions
27. Application provisions
71. (1) This provision applies the protection in sections 22C and 44B to decisions
made or actions taken by the Convenor on the basis of an otherwise invalid
classification decision made before or after commencement of the provision.
72. (2) The effect of this provision is that the Convenor may provide classification
certificates and notices of decision for classifications made on or after the
commencement regardless of whether the application for the relevant review was
made before or after then.
73. (3) This provision continues in force the Director's powers to provide copies of
classification certificates and notices of decision.
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74. (4) This provision provides that, on or after commencement, the Convenor may in
the ACT require a copy of the relevant material regardless of whether the application
for the relevant review was made before or after the commencement.
75. (5) This provision provides that proceedings may still be brought by or against the
Commonwealth regardless of whether the pertinent thing occurred before or after the
commencement.
76. (6) This provision provides that only decisions of the Director made up to
commencement are reviewable by the AAT under section 86 as from that point they
will be reviewable under section 91.
77. (7) This provision provides for separate powers for the Director and Convenor to
deal with applications for evidentiary certificates made on or after commencement.
78. (8) This provision provides that provisions relating to the time period in which the
Review Board must make a decision apply to applications made on or after
commencement, and, in the event of failure to meet that timeframe, for reporting in
the annual report starting with the financial year in which commencement occurred.
79. (9) This provision provides for separate powers for the Director and
Convenor to deal with fee waiver applications made on or after commencement.
80. (10) This provision provides that decisions of the Director or the Convenor
made on or after commencement are reviewable by the AAT under section 91.
28. Transitional provision - fee waiver principles
81. This provision provides that the fee waiver principles determined before the
commencement of the relevant item continue to have effect in relation to the
Director's power to waive fees as if they were made under the relevant new provision.
28. Transitional provision - powers of the Director
82. This provision preserves the power of the Director with respect to the States or
the Northern Territory until they have substituted the Director with the Convenor
under their corresponding laws.
SCHEDULE 3 - Amendments to streamline the
classification process
Part 1 - Amendments
Classification (Publications, Film and Computer Games) Act 1995
83. Amendments to section 5 and 14 and new sections 21AA, 22D, 22E, 22F, 22G,
22H and 22J introduce an additional content assessment scheme whereby a person
appropriately trained and authorised by the Director is able to make recommendations
to the Board about the classification and consumer advice for additional content
released with already classified or exempt films. The Board will retain responsibility
15
for classifying the film. Its consideration will be assisted by the assessment of an
additional content assessor.
1 - 5. Section 5
84. These amendments insert essential new definitions or make amendments to
existing definitions relevant to the additional content assessment scheme.
`Additional content'
85. A new definition for `additional content' is established. It is an inclusive
definition intended to provide indications of the type of material that is to be
considered additional content for the purposes of the additional content assessment
scheme. It expressly excludes some material from being additional content.
86. The new definition lists some material that would be additional content. This is
not an exhaustive list. Additional content might also include featurettes or short films
which take their meaning from the classified or exempt film but would not be
marketable independently. For example, a classified fictional feature film may
include a storyline based around a particular place, item or thing which may or may
not be real. A distributor may later produce a featurette inventing a `history' or
`explanation' or `sequel' to that place, item or thing for marketing with the already
classified film on a storage device such as a disc. This could also be considered to be
`additional content'.
87. The definition expressly states that additional content does not include a `work'
as amended. Therefore, the following are not `additional content':
- audio-visual productions that appear to be both self-contained and produced for
viewing as a distinct unit such as spin-offs from a movie which could be marketed
independently
- television programmes, and
- computer games that are produced for playing independently.
88. In addition, a `film' as defined in the Classification Act expressly states that it
does not include a computer game or an advertisement. Therefore, it is clear that a
computer game or advertisement cannot be the additional content submitted with a
classified or exempt film for classification under the additional content assessment
scheme.
89. The definition also provides that the regulations may prescribe other material
which is or is not additional content for the purposes of the additional content
assessment scheme. The ability to prescribe something in the regulations is designed
to provide flexibility into the future. For example, it may be necessary at a later stage
to clarify or limit further the type of material that is regarded as additional content to
respond to industry and marketing developments.
Additional content assessor
90. A new definition for `additional content assessor' is established. It refers to a
person authorised by the Director under new section 22D which in turn sets up
requirements for authorisation.
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Classifiable elements
91. A new definition for `classifiable elements' is established. It makes it clear that
they are the same as those provided in the guidelines as they are determined and in
force at any particular time. These are currently themes, violence, sex, language, drug
use and nudity.
Decision
92. The definition of `decision' for the purposes of the Classification Act is amended
to include a decision to revoke the classification of a film in the circumstances set out
in new section 21AA. The effect is a decision is reviewable by the Review Board.
Work
93. The definition of `work' is amended to provide that it includes a cinematic
composition that appears to be produced for viewing as a discrete unit as well as
appears to be self-contained. This change overcomes any ambiguity or uncertainty
arising from the previous formulation of the definition which required the
composition to be objectively produced for viewing as a discrete entity.
The definition also clarifies that `work' includes a television programme.
6. At the end of section 14
94. The effect of the definition of `film' in the Classification Act is that, when a film
which has previously been classified is released with additional material - for
example, when a feature movie is released with extra material on a storage device
such as a DVD - this new release is a new `film' which is unclassified.
95. To address this issue, this amendment inserts three new subsections to provide
special rules for the classification of films which comprise classified films, exempt
films and additional content.
96. New subsection 14(5) provides that an applicant may submit with an application
for classification of a film an assessment of any additional content prepared by an
additional content assessor. There are a number of safeguards to protect the integrity
of the classification scheme as a whole. Paragraph 14(5)(a) provides the threshold for
using the scheme as being films that comprise a combination of classified or exempt
films and additional content. If an applicant submits material that does not meet the
hurdle of comprising only those elements, applying the definitions in section 5 as
relevant, the additional content scheme is not available to them. Paragraph 14(5)(b)
provides that the additional content assessment scheme would not apply to films that
would, in the applicant's opinion, be classified at X18+ or be refused classification.
Paragraph 14(5)(c) ensures that applications using the additional content scheme
cannot be made by a person who has been given notice by the Director because of the
poor quality of assessments provided with previous applications (below).
97. New subsection 14(6) provides that the assessment must, in the case of a film
containing at least one already classified film, describe and report on the impact of
any classifiable elements in the additional content that are at the same or higher level
as the highest classification or, in the case of a film not containing any already
classified film, describe and report on the impact of all classifiable elements in the
additional content. This ensures that all classifiable elements at the same or a level
17
higher than the existing classification are identified for the Board's consideration.
The assessment must include a recommendation of the classification and appropriate
consumer advice and any other matter prescribed in the regulations. The ability to
prescribe something in the regulations is designed to provide flexibility into the
future. For example, use of the additional content assessment scheme may later
reveal issues that, for the protection and information of the consumer, should be
brought to the attention of the Board, whose responsibility it remains to classify the
new film.
98. New subsection 14(7) is in similar terms to existing section 17(4) for the
computer games assessment scheme. It gives the opportunity to the applicant to make
any supporting submissions in the event the Board or Director disagrees with the
recommended classification.
7. After section 14
S 14A Films consisting only of classified films
99. New section 14A clarifies that, when several previously classified films are
brought together for distribution as a single package, the product does not require
classification simply because of the fact of compilation. In the past, such
compilations have generally been on separate discs. However with changing
technology, there is increasingly the capacity to put a number of already classified
films onto one storage device. Without amendment, the Classification Act arguably
requires a new application and classification of a compilation on a single storage
device as it constitutes a new `film'. This amendment responds to changing
technology to limit regulatory burden or cost to industry and to ensure a
commonsense approach to technological developments.
8. At the end of subsection 21(2)
100. This amendment to subsection 21(2) provides that the addition of descriptions or
translations, and navigation functions to classified films are not considered
modifications requiring reclassification under section 21.
101. `Navigation functions' add functionality and useability without fundamentally
changing or adding to the content of the film per se. Such functions are intended to
cover any form of navigation tool used by a viewer to move around a film on a
storage device such as a video disc. Navigation functions include menus which allow
the user to make choices using screen icons or a list of options or possible selections.
They include simple functions such as `play' and `fast forward' but also include the
ability to choose between scenes of the movie, or between alternative options on the
storage device such as additional content on the film (see new section 14(6) ff) or
different movies on the same storage device (see new section 14A).
102. Descriptions or translations such as subtitles, captions, dubbing and audio
descriptions provide interpretation of, and therefore access to, already classified films
for people with language barriers, visual or hearing impairments and the ageing
population. They do not provide new content per se but allow the audio and visual
elements of an already classified film to be accessed by those who are unable to
otherwise access them.
18
103. Descriptions or translations cover a wide variety of tools to give information
about the visual or audio content in another format. They include subtitling in the
same or another language; dubbing of speech in another language; closed or open
captioning of dialogue and sound effects such as a phone ringing, baby crying or dog
barking; audio descriptions of the visual content that describe actions, facial
expressions, scene changes, and other visual effects such as who laughed or fired the
gun; and on screen sign language interpretations.
104. Descriptions or translations should accurately render the original visual or audio
content in another format. Paragraph 21(2)(d)(ii) provides a safeguard to require
descriptions or translations to be accurate in rendition - they must not provide a
different meaning or nuance which would be likely to cause the film to receive a
higher classification.
9. After section 21A
S 21AA Revocation of classification of films containing additional content
105. New section 21AA provides that the Board must revoke the classification of a
film in specified circumstances which demonstrate that the assessment on which the
classification was based was highly unreliable. This is an important safeguard to
ensure the integrity of the additional content assessment scheme and to maintain
consumer confidence in the classification of films containing additional content.
106. It covers situations where the Board has made a classification on the basis of an
assessment that did not contain information about classifiable elements (as defined)
that were at the same or higher levels than the already classified film, or, if it did
contain such information, the assessment of those elements was highly unreliable
because it was either misleading, incorrect or grossly inadequate. The Board is
required to revoke the classification if it would have made a different classification
decision had it been aware of those matters.
107. An everyday interpretation should be made to determine whether an assessment
of the classifiable elements could be regarded as misleading, incorrect or grossly
inadequate.
108. For flexibility, regulations may prescribe circumstances in which such an
assessment is taken to be misleading, incorrect or grossly inadequate. See new
subsection 93(2).
10. After Division 2 of Part 2
Division 2A - Assessments of additional content
109. New Division 2A sets out provisions about additional content assessors and
applicants using the additional content assessment scheme.
Subdivision A - Additional content assessors
S 22D Additional content assessors
110. New section 22D provides that the Director may authorise a person to prepare
assessments of additional content if they have undertaken the appropriate training and
if they are not subject to a notice issued by the Director under section 22F (see below)
barring them from being an additional content assessor. This is a quality control
mechanism to ensure that assessors understand the classification system and have not
19
previously acted improperly in making assessments or failing to meet training
requirements.
22E Revocation of additional content assessor status
111. New section 22E provides that the Director may revoke an additional content
assessor's authorisation in certain circumstances. Together with sections 22F and
22H (see below), it is an important safeguard to ensure the integrity of the additional
content assessment scheme and preserve community confidence in classifications
which are based on assessments by additional content assessors.
112. It is a permissive power and only exercisable if the Director is satisfied of one or
more conditions. They are either that the assessor has prepared an assessment of
additional content but not revealed its classifiable elements as required by
subsection 14(6) or that the assessor's assessment of the classifiable elements was
misleading, incorrect or grossly inadequate; or that the additional content assessor has
not completed further training as requested by the Director; or that the additional
content assessor has prepared two or more assessments which contain misleading,
incorrect or grossly inadequate information.
113. The section also provides for the regulations to prescribe other conditions. This
is to provide the flexibility to introduce specific indicators of an additional content
assessor's behaviour that warrants revocation of the authorised status should use of
the additional content assessment scheme indicate such was appropriate or necessary.
114. An everyday interpretation should be made to determine whether an assessment
of the classifiable elements could be regarded as misleading, incorrect or grossly
inadequate or whether an assessment could be regarded as containing misleading,
incorrect or grossly inadequate information.
115. As the consequences of revocation of an additional content assessor's
authorisation are potentially serious, it is expected that an assessment would need to
exhibit a high degree of ineptitude, be made in bad faith, or include a highly
unreliable evaluation of the classifiable elements to be regarded as misleading,
incorrect or grossly inadequate.
116. For flexibility, regulations may prescribe circumstances in which an assessment
is taken to be misleading, incorrect or grossly inadequate; or to contain misleading,
incorrect or grossly inadequate information. See new subsection 93(2).
117. The section operates so that a person whose authorisation has been revoked may
at any time, if they otherwise fulfil the requirements of section 22D, be authorised
again.
22F Barring notice to additional content assessor
118. New section 22F escalates sanctions for the unacceptable use of the additional
content assessment scheme by a person who is, or has been, an additional content
assessor. It establishes a process whereby, in conjunction with section 22D, the
Director can effectively bar a person from being an additional content assessor for a
period of up to 3 years. Section 22F empowers the Director to issue a notice on
certain conditions. Section 22D prevents the Director from authorising a person if a
notice under section 22F is in force against that person.
20
119. Like section 22E, the power to issue a notice is permissive and only exercisable
if the Director is satisfied of one or more conditions. They are either that a
classification of a film, which was classified taking into account an assessment by the
person of its additional content, has been revoked under section 21AA; or that the
person has prepared two or more assessments which contain misleading, incorrect or
grossly inadequate information; or that the additional content assessor has met another
condition prescribed by the regulations.
120. The sanction imposed by this section is more serious than those in section 22E.
In view of that, it is expected that the Director's powers under section 22F would be
used rarely. It must be clear that the conduct of the person is sufficiently serious to
warrant these stronger sanctions.
121. As a permissive power, there is no requirement that a person be barred if a
condition's minimum trigger point is satisfied. For example, even if a person has
prepared two assessments with misleading, incorrect or grossly inadequate
information, the Director will need to consider whether the nature of the errors was
significant enough to necessitate issuing a notice barring that person. At all times, the
Director will be expected to exercise discretion and consider the nature and severity
of the person's action in the circumstances.
122. Unlike section 22E, this section applies both to current additional content
assessors and to people who have been but are no longer assessors, perhaps because
their authorisation has been revoked because they have not completed required further
training.
123. Like section 22E, an everyday interpretation should be made to determine
whether an assessment could be regarded as containing misleading, incorrect or
grossly inadequate information. For flexibility, regulations may prescribe
circumstances in which an assessment is taken to contain misleading, incorrect or
grossly inadequate information. See new subsection 93(2).
22G Review by AAT
124. As a revocation made under section 22E and a notice issued under section 21AA
each has the potentially serious consequence of a person being deprived of their
current employment, section 22G provides for application to the Administrative
Appeals Tribunal for review of a decision of the Director under either of those
sections.
Subdivision B - Barring notice to applicants
22H Barring notice to applicant
125. New section 22H provides serious sanctions for the unacceptable use of the
additional content assessment scheme by a distributor, publisher or other industry
applicant. It establishes a process whereby, in conjunction with subsection 14(5), the
Director can effectively bar someone from using the additional content assessment
scheme for a period of up to 3 years. Section 22H empowers the Director to issue a
notice on certain conditions. Paragraph 14(5)(c) prevents an applicant from
submitting an assessment of additional content with an application for classification
of a film if a notice under section 22H is in force against that person.
21
126. The power to issue a notice under section 22H is a permissive power and only
exercisable if the applicant has submitted at least two applications for classification
containing assessments with misleading, incorrect or grossly inadequate information,
which led to the Director revoking the authorisation of the additional content
assessors who prepared them.
127. Like section 22F, this is a serious sanction and expected to be used rarely.
At all times, the Director will be expected to exercise discretion and consider whether
the nature and severity of the person's action are sufficiently serious to warrant these
strong sanctions in the circumstances.
128. An everyday interpretation should be made to determine whether an assessment
could be regarded as containing misleading, incorrect or grossly inadequate
information. For flexibility, regulations may prescribe circumstances in which an
assessment is taken to contain misleading, incorrect or grossly inadequate
information. See new subsection 93(2).
22J Review by AAT
129. As a notice issued under section 22H has the consequence of a person being
unable to use the additional content assessment scheme, section 22J provides for
application to the Administrative Appeals Tribunal for review of a decision of the
Director under that section.
11 and 12. Section 93 and at the end of section 93
130. A new subsection 93(2) provides that, in addition to the general regulation
making power now found in subsection 93(1), regulations may prescribe, for the
purposes of the additional content assessment scheme, circumstances in which an
assessment of classifiable elements is to be taken to be misleading, incorrect or
grossly inadequate, and circumstances in which an assessment of additional content is
taken to contain misleading, incorrect or grossly inadequate information.
131. This provision provides the flexibility to address particular issues or to set out
particular matters should they arise in the future. It applies to provisions relating to
the revocation of the classification of films containing additional content in
section 21AA, the revocation of additional content assessor status in section 22E,
issuing a barring notice to additional content assessors in section 22F, and issuing a
barring notice to applicants in section 22H.
132. New subsection 93(3) makes it clear that it is not intended that the regulations
should prescribe exhaustively or in any way limit the circumstances in which an
assessment either is misleading, incorrect or grossly inadequate; or contains
misleading, incorrect or grossly inadequate information.
Part 2 - Application, transitional and saving provisions
13. Application of amendments
133. (1) This provision relates to the additional content assessment scheme. It
applies the new and amended definitions - `additional content', `additional content
assessor', `classifiable elements', and `decision', as well as the application and
assessment process to applications for films made on or after commencement.
22
134. (2) This provision applies the new definition of `work' to applications for
classification of both films and computer games on or after commencement.
135. (3) This provision allows compilations to be treated as if each classified
film was on a separate disc, regardless of whether the classified films were classified
before or after commencement.
136. (4) This provision provides that the addition of descriptions or
translations, and navigation functions to classified films after commencement are not
considered modifications requiring reclassification under section 21, regardless of
whether the classified film was classified before or after commencement.
SCHEDULE 4 - Other Amendments
Part 1 - Amendments commencing on Royal Assent
Classification (Publications, Film and Computer Games) Act 1995
1. Subsection 14(3)
137. This amendment removes the requirement for separate applications to be made
for classification of otherwise identical public exhibition films and sale/hire films.
This is consistent with the objective of standardising classifications regardless of
platform.
2. Application provision
138. The application provision removes the requirement for separate classification
for applications made on or after commencement.
3. Paragraph 29(4)(b)
139. This amendment implements the requirements of the Convention on the Rights
of the Child by changing the requirement for the Board to refuse to approve an
advertisement if it depicts in an offensive way a person who is or looks like a child
under 16 to a person who is or appears to be a child under 18.
4. Application provision
140. The application provision ensures the amended provision applies to
advertisements submitted for approval or review on or after commencement.
5. At the end of section 47
141. This amendment allows the regulations to prescribe if required a higher
maximum number of members of the Board. The Classification Act currently limits
the maximum number of Board members to 20, including the Director and Deputy
Director.
142. This amendment provides greater flexibility into the future, so that the
membership of the Board may be increased should the workload require it. The
Board's workload is dependent on industry lodging applications and is to an extent
seasonal. The Act permits the appointment of temporary Board members as a means
23
of dealing with high workload periods. However, this is limited by the statutory
maximum. The ability to prescribe a higher maximum number would ensure that
increased workloads can be managed in high workload periods within the statutory
timeframes for making decisions. As classification operates on a cost recovery basis,
the costs for any additional Board members would be covered by the amount of fees
recovered.
143. The current requirements that members of the Board be appointed by the
Governor-General, that the membership be broadly representative of the Australian
community and that the Minister consult with the States and Territories before
recommending the appointment of a member are retained.
6. At the end of subparagraph 53(b)(i)
144. This amendment provides for the Director to exercise powers conferred by
States and Territories to approve organisations in relation to computer games.
145. Under State and Territory enforcement legislation, the Director may approve an
organisation and exempt its activities that relate to films (eg a film festival
exemption). However, the display of certain types of interactive images more readily
defined as computer games raises classification issues. Some State legislation has
been amended to cover organisations and activities or functions that relate to
computer games.
7. Paragraph 73(c)
146. This amendment allows the regulations to prescribe if required a higher
maximum number of members of the Review Board. The Classification Act currently
limits the maximum number of Review Board members to eight members plus the
Convenor and Deputy Convenor.
147. The current requirements that members of the Review Board be appointed by
the Governor-General, that the membership be broadly representative of the
Australian community and that the Minister consult with the States and Territories
before recommending the appointment of a member are retained.
8 and 9. Subsections 95(1), (2) and (3)
148. These amendments repeal expired transitional provisions dealing with members
of the former Board and Review Board.
Part 2 - Amendments commencing on Proclamation
Classification (Publications, Film and Computer Games) Act 1995
10, 11 and 12. Section 5 (definition of determined markings) and subsections 8(1)
and (1A)
149. Amendments to section 8(1) transfer from the Director to the Minister the power
to determine markings for each type of classification and the manner in which they
are to be displayed. The provision is also amended to remove the requirement to
issue a notice in the Gazette and to state expressly the Minister would determine the
24
markings by legislative instrument. This ensures transparency of the law and its
central location in the Federal Register of Legislative Instruments.
150. New subsection 8(1A) will require the Minister to consult with participating
Ministers - the State and Territory Censorship Ministers.
151. The definition of determined markings in section 5 is also amended to remove
reference to the markings being determined by the Director.
13. Transitional provision - determined markings
152. These amendments provide that the determination in force before the
commencement of these items continues to have effect as if it was determined under
the new provision.
14. At the end of Division 1 of Part 2
8A Notice about classifications
153. New section 8A provides the Minister may approve a form for a notice about
classification. The note explains that State and Territory legislation requires sellers
and exhibitors of classified material to display a notice about classifications where the
material is sold or exhibited. The notice sets out and explains the markings
determined under section 8, and so is appropriately approved by the Minister.
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